Setback for wiretapping plaintiffs bodes well for EFF class action

The Ninth Circuit dealt a blow to plaintiffs in the Al Haramain wiretapping …

A federal appeals court has dealt a setback to plaintiffs in a lawsuit against the NSA's warrantless surveillance program, ruling that the state secrets privilege precludes the use of evidence gleaned from a classified document inadvertently given to a Muslim charity accused of terrorist ties. But in a hopeful sign for the Electronic Frontier Foundation's pending class action lawsuit against AT&T, the three-judge panel of the US Court of Appeals for the Ninth Circuit took a dim view of the government's broader claim that the very existence of the so-called Terrorist Surveillance Program was a state secret.

The case concerns the Al-Haramain Islamic Foundation, an international nonprofit organization that builds mosques and undertakes education programs around the world. The Bush administration has accused the foundation of ties to terrorist groups. In 2004, the government declared the organization a "Specially Designated Global Terrorist" and froze its assets. In the course of the resulting legal proceedings, the Treasury Department inadvertently gave the foundation's lawyers a document that the organization says proves the executive branch has been spying on their communications without a warrant. The organization took the opportunity to sue the government for warrantless spying.

The government has countered that the classified document's contents are still a state secret despite their inadvertent disclosure to Al-Haramain. The Ninth Circuit accepted that argument on Friday. It rejected the lower court's proposal to exclude the document itself from evidence but allow members of the organization to testify from memory regarding the contents of the document. However, the Ninth Circuit said that certain provisions of the Foreign Intelligence Surveillance Act might overrule the common law state secrets privilege. The case has been remanded to the lower court for further consideration of that issue.

While the decision was a victory for the government in a narrow sense, the Ninth Circuit's opinion gives civil libertarians much to celebrate. The court rejected the administration's argument that the very existence of a surveillance program is a state secret, noting that the White House has made numerous public statements regarding the program. That bodes well for EFF's class action lawsuit against AT&T, which was heard by the Ninth Circuit on the same day as the Al Haramain case. The Ninth Circuit had previously consolidated the two cases, but has now separated them, finding that they raise different legal issues. That suggests that the Ninth Circuit may be preparing the allow EFF's lawsuit against AT&T to move forward.

The Al-Haramain case will now be remanded to Judge Garr M. King, who will decide whether provisions of the Foreign Intelligence Surveillance Act preempts the common law state secret privilege. FISA provides a more detailed set of rules regarding the handling of confidential information in wiretapping case, and the Ninth Circuit has sent the case back to Judge King to decide if the case can proceed under those alternative rules. If he finds that it can, it will almost certainly mean another round of appeals, and only then could discovery in the case begin. This case could easily outlive the Bush administration.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits